Upon call to the bar, lawyers take an oath to uphold the ethical standards of their profession. Maintaining these standards requires more than a good faith intention to avoid dishonesty or impropriety; it requires vigilance and prudent second thought when embarking on a course of action. Without care, lawyers can unintentionally undermine their client’s interests or find themselves in ethical quandaries and conflicts of interests.
Here is a checklist of five questions to ask yourself before undertaking a legal matter.
1. Are you competent in the relevant legal areas?
“Don’t dabble” is an oft-repeated mantra. Practising in an unfamiliar area risks damaging your client’s interests, your reputation, and your obligations under the Rules of Professional Conduct. But lawyers may sometimes feel pressure to expand the scope of their representation to encompass tangential or additional matters brought forward by a client, such as a family lawyer being asked to establish a charitable corporation or resolve estate planning matters. Sometimes the best legal advice you can give to a client is a referral to another lawyer with the necessary experience.
2. Who is your client?
Lawyers can sometimes find themselves in a situation where they are, perhaps inadvertently, representing multiple parties with potentially adverse interests. In family law or estate planning, for example, this can occur if the lawyer accepts instructions from multiple family members — often assuming that the various instructions are consistent with the desires and interests of their actual client. Be careful to specify and remind yourself whom you have agreed to represent, and ensure that the instructions you take and the advice you give are from and to that person.
3. What are your client’s intentions?
Fraudsters often use inattentive lawyers as unknowing instruments and accomplices for unethical and illegal conduct. For example, it’s not unheard of for a lawyer representing a supposed mortgagor to facilitate the transfer of proceeds to their client, only to later discover their client misrepresented the state of title or even their right to the property itself. Willful blindness or unreasonable ignorance in such circumstances will not prevent a potential finding of liability for malpractice, or worse. Take the time to confirm your client is not leading everyone, including you, down the garden path.
4. What are the parameters of your retainer?
Lawyers can run into trouble when they act without client instructions or fail to act in accordance with instructions. This can leave you torn between bad choices if time-sensitive developments occur and your client is unavailable to instruct. Ensure you set out at the beginning of the retainer the exact scope of your representation, the circumstances in which you will seek instructions, and the ways in which you will obtain those instructions (practicePRO provides helpful online resources for preparing retainers).
5. Are you maintaining confidentiality?
An inadvertent failure to keep client confidentiality can still be a serious breach of a lawyer’s ethical obligations. For example, border crossing with electronic devices containing privileged information can expose those devices to search by Canadian or foreign officials. The Federation of Law Societies of Canada advises lawyers to only bring “clean” devices with them across a border (without any confidential information on them). In the alternative, encrypting the contents of your devices or segregating privileged material into clearly marked folders or accounts will still provide some safeguards for your ethical obligations in such circumstances.
Taking the time to pause and consider these questions before embarking on a course of action will help you maintain your ethical obligations, your quality of representation, and the benefit you provide to the public.
About the author
Shawn Erker is the legal writer and content manager at LAWPRO. He is also editor for the OBA’s Law Practice Management Section.